Category: Blog

For the foreseeable future, in the absence of a universal vaccine mandate, a large minority of U.S. citizens will likely remain unvaccinated. As courts across the country impose vaccine requirements for juries — requiring jurors to show proof of vaccination and dismissing them if they do not — we are faced with an important constitutional question. Does requiring vaccines violate the Sixth Amendment right to a trial by a jury of one’s peers? 

The Sixth Amendment explicitly grants criminal defendants the right to a “speedy and public trial, by an impartial jury.” The Supreme Court has ruled, most famously in Taylor v. Louisiana, that an impartial jury is one that is representative of the community, often what they refer to as a representative “cross-section.” Juries that exclude women or racial minorities have failed to pass this “cross-section” test. Today, amid the ongoing Covid-19 pandemic, we are faced with the question of whether excluding the unvaccinated fails the “cross-section” test? In other words, can a jury composed only of vaccinated jurors truly be said to be a “jury of one’s peers?” 

In most communities, the answer is no. Surely in a jurisdiction where there is a near-universal vaccination rate, you could say that a vaccinated jury is representative, but in reality, few if any of these such jurisdictions exist. Even in Marin County, CA, which has one of the highest vaccination rates of any U.S. county, only 90% of eligible residents are fully vaccinated. And the remaining 10% is not a random selection. Just as Covid-19 cases, hospitalizations, and deaths have disproportionately affected low-income people and people of color, these groups are also disproportionately unvaccinated. In most states, the percentage of vaccinated people who are black is lower than the percentage of the population that is black. An analysis of socioeconomic status reveals even more stark distinctions. People with lower income, regardless of race, are far more skeptical of the Covid-19 vaccine and thus have far lower vaccination rates. In addition, there are political considerations. On average, Republicans are far less likely to be vaccinated than Democrats. 

With this recognition of vaccine disparities, it is easy to understand how a vaccinated jury would be an inherently whiter, wealthier, more educated, and more liberal jury than one composed of a random subsection of the population. It is clear then that vaccine mandates for juries violate the “cross-section” test. Vaccinated juries are, generally speaking, not wholly representative of real communities. 

The question then becomes one of how to maintain representative juries while still protecting the health and safety of jurors, judges, attorneys, and others who interact with the judicial system. Some obvious answers may include masks, social distancing, or holding trials virtually. The latter alternative though raises its own complications and questions of access and representation. If only those jurors with internet access were selected, we would see many of the same disparities reflected. Further, if we held in-person trials and dismissed those who felt unsafe sitting on a jury alongside an unvaccinated juror, we might risk the same issue of disproportionate representation in the reverse direction, seeing more unvaccinated, younger, and more politically conservative juries. 

It is rare that something is so clearly unconstitutional, and simultaneously so difficult to address as is this problem. Still, it raises interesting questions about due process and forces an important analysis of both the historic and new racial, socioeconomic, and educational disparities present in our jury pools.

The United States healthcare sector has experienced nurse and worker shortages on and off since the 1960s, and the current COVID-19 pandemic has only worsened this phenomenon. As of April 2021, over 3,000 US healthcare workers have died due to COVID-19 since the pandemic started, and many more have left the field because of the lack of equipment, support, and increasing hours, all of which has led to extreme burn-out and fatigue. More recently, vaccine mandates imposed by the federal government, states, and private companies are now placing even more strain on healthcare workers as those unwilling to be vaccinated have been fired, have quit, or have been placed on administrative leave. 

Vaccines are an essential part of bringing America out of this pandemic, and are an important part of keeping healthcare workers safe. Healthcare providers are on the frontlines serving all people who need medical care, COVID and non-COVID patients. Although safety measures are taken, hospital staff and healthcare providers are at higher risk of COVID infection. Healthcare workers were among the first groups to be eligible for the vaccine because of their increased exposure to patients with COVID. Once vaccines were open to the public, many hospitals and governments began to implement vaccine mandates. 

Currently, thirteen states require healthcare workers, home aides, and nursing care workers to be vaccinated before treating patients. In the private sector, major healthcare providers across the country, including Kaiser Permanente, Atrium Health, and Trinity Health, have issued COVID vaccine mandates for their employees. The Center for Medicare & Medicaid Services, via the Biden-Harris Administration, mandated in early September that all Medicare and Medicaid certified facilities must vaccinate their employees to continue to receive payments and benefits from the program. Medical and religious exemptions are accepted by all of these institutions. The policy rationale behind vaccine mandates for healthcare workers is that it protects both patients and staff. Through vaccines, hospitals and clinics can slow the spread of COVID-19 and maintain a steady workforce by reducing the number of staff members who contract and transmit COVID. However, not all healthcare workers are willing to comply with these mandates.

In the last few months, healthcare facilities have fired a number of their workers for refusing to be vaccinated, and others have quit, claiming that the mandates violate their rights. On October 6, Kaiser Permanente placed over 2,000 Washington state employees on unpaid leave and have said they have until December 1, 2021, to comply or have their employment permanently terminated. The company reports they are optimistic about the situation and will continue to educate their employees on the benefit of the vaccines. At Henry Ford Health in Detroit, over 400 employees quit just this month protesting the vaccine mandate. Colorado’s health officials are contemplating extending vaccination deadlines and weakening the vaccination policy to retain providers that they would otherwise need to fire for failure to comply. These examples show the vast array of strategies employed by hospitals who are reluctant to fire their workers, but also want to keep their patients and workers safe from this destructive disease. 

Hospitals and providers are responsible for the lives and safety of their patients, and a large part of that duty is keeping healthcare workers safe and in safe working conditions. Although there is hesitancy and cases of outright refusal to comply with vaccine mandates, COVID vaccines have thus far proven to save lives and improve immune responses to exposure. Vaccinating healthcare workers helps to keep them safe and protected as they continue to provide care for patients. 

The shift to remote learning due to the COVID-19 pandemic in March 2020 exacerbated disparities already existing in the United States education system. Low-income students and students of color have disproportionately incurred learning losses and emotional difficulties compared to high-income and white students, which is also representative of the experiences of students with disabilities. These losses and difficulties may leave schools and other support services vulnerable to a variety of legal troubles, or may provide an avenue for growth and increased support as we transition into a post-pandemic world.

The pandemic, and the shift to remote learning, has resulted in unexpected benefits for students with disabilities who lean white and wealthy. For many students with social anxieties, a break from the classroom mitigated some of the stressors they experienced during in-person learning and has even increased attendance in class, as the social aspect of school sometimes forced them to stay home and miss out on learning altogether. The utilization of Zoom breakout rooms also aided in this, as it allowed students to meet in smaller groups removed from the large classroom setting and get more individualized attention from their teachers. It also made space for students and teachers alike to be creative in figuring out what served individual students’ learning styles best. For some students, listening to music on headphones while they watched their class with closed captioning increased their productivity; for others, emailing or texting their teacher’s questions privately was more comfortable than asking questions in front of their class, so they engaged more with the material. Many students also reported that they took advantage of technological resources that were not as prevalent during in-person learning, and that their teachers made more of an effort to check in on them one-on-one throughout the school year than they did when schools met in person.

This is the ideal. However, for many more students with disabilities, remote learning has been incredibly detrimental to their learning and overall well-being. Students with disabilities have lost countless hours of individual therapy sessions — whether it be speech therapy, physical therapy, behavioral counseling, or otherwise —that they received through their schools, and were unable to arrange supplementary services when schools went remote. This only contributed to their learning loss and has led to a deterioration of their physical and social skills. Other students reacted negatively to the isolation and lost motivation to attend class at all. Most notably, however, was the discrepancy in resources available to students across racial and socioeconomic lines. For students lacking computers or a reliable internet connection, accessing the limited resources that were available to them was nearly impossible. With that, these students often did not have families or communities that they could lean on for assistance when attending virtual class was not an option because their families did not have the flexibility to go remote as well. Further, many families did not know what resources they were entitled to or what arrangements they could make through their schools by way of developing or modifying individualized education programs, or IEPs. These are legal documents that road map learning goals and necessary resources that all students with disabilities in the United States are entitled to. However, attaining representation and advocating for a child’s needs are not luxuries that all families have the time or funds for. This only further increases the learning gap and the predicted achievement gap for students with disabilities. 

Now the question lies in how to move forward in a world where the pandemic is less novel but ever challenging. Questions of civil rights violations against students with disabilities — namely, failure to meet requirements outlined by Section 504 of the Americans with Disabilities Act — may be unpacked and litigated as schools continue to reopen and transition to hybrid learning models. This could impact policy surrounding the allocation of resources for students with disabilities, or at the very least, move the conversation in that direction. Regardless, it is imperative that the lessons learned from COVID-19 with respect to students with disabilities be taken forward as we continue to move through the pandemic.

A recent, and well deserved, trend in media outlets is congratulating and thanking health care workers for being heroes in the unprecedented crisis of Covid-19. While the Delta variant and battles over vaccine mandates still rage, there are many taking a cautious sigh of relief that the end is in sight for our healthcare struggles. Unfortunately, Covid-19 may have exacerbated an existing issue within the healthcare industry that will lead to a new crisis in the near future: healthcare worker shortage.

The American Association of Colleges of Nursing (AACN) has been sounding the alarm for years that the rate of job growth in the healthcare industry, especially in the area of registered nurses, is not sufficient for rising healthcare needs. In 2017, more than 50% of registered nurses were over the age of 50, and it is projected that 200,000 new nurses will be needed every year to meet healthcare needs and to recoup staffing losses from retiring nurses. The dark shadow hanging over the head of the healthcare industry is the rapidly approaching retirement of the Baby Boomers. The largest generation in America’s history is entering their twilight years and want to retire. As of September 2020, 40% of all Baby Boomers have entered retirement. Not only is the healthcare industry losing millions of workers to retirement, as is evident by the disproportionately older demographics in the nursing field, but the Boomers themselves will be a severe stress on our nation’s healthcare. Baby Boomers live longer and are likely to suffer from high rates of obesity, hypertension, high cholesterol, and diabetes. The healthcare industry’s labor shortage was already a fire beginning to grow, but the pandemic has done more than fuel the flames.

Covid-19 has intensified the terrible problem of burnout in the healthcare field. Many of the Healthcare Heroes that we adore for their selfless service are considering getting out of the field altogether. Over half of healthcare workers, which includes the nursing assistants found in retirement homes, have reported burnout from work. The stresses of working in unprecedented conditions have taken their toll on our severely needed healthcare professionals. Additionally, the push against Covid vaccines has led to many workers feeling betrayed by the people they painstakingly served. Many have become disillusioned with the profession and are considering switching careers. The poor disposition of current healthcare workers must serve as a deterrent for those who are desperately needed to join the field. The inevitability of Baby Boomers entering retirement and stressing the system was already not being alleviated by projected employment increases and who knows how badly the effects of burnout will worsen the situation. This loss of faith in the system comes at the worst possible time, as the already existing labor shortage was not being treated.

Thankfully, the Federal government seems to be aware of the present danger that a healthcare worker shortage presents. Before the American Rescue Plan Act was passed, Congress modified it to direct more funds to the public healthcare system. Specifically, the act sent over nine billion dollars towards workforce related support, which will primarily assist in hiring new staff with proper equipment. Some members of Congress are trying to further assist current healthcare workers, such as Representative Maloney with her reintroduction of the Student Loan Forgiveness for Frontline Health Workers Act. This act would reward the service of healthcare workers by forgiving their student loans; however, Congress seems hesitant to pass additional costly legislation after the difficulty they had with the American Rescue Plan Act.

The importance of healthcare workers is undeniable, and they certainly deserve the title of “heroes” for their service. A large debt is certainly owed to the professionals that pulled us through the worst of the pandemic. The American Rescue Plan will hopefully address the worker shortage, and it might be a sign that society at large is acknowledging the plight of our vital healthcare heroes. 

The United States began widespread COVID-19 vaccine distribution on December 14^th, 2020; however, after ten months the CDC reports that only 56% of the U.S. population is fully vaccinated. When compared to other high socioeconomic (SES) nations, the U.S.’s vaccination rate ranks among the lowest. While the people of low SES nations are pleading to high SES nations to increase their access to this preventive medicine, the people of the United States are privileged to not face this access-related issue. Instead, a barrage of misinformation has convinced a large portion of the U.S. population to not get fully vaccinated. Efforts to counter vaccine misinformation have done little to repair the damage created in the public’s perception of the COVID-19 vaccine. The Biden Administration must follow through on their proposed OSHA COVID-19 vaccine mandate and expand those mandates to cover other gaps in our public health intervention. 

According to the scientific journal, Nature, low SES nations collectively have a vaccination rate of less than 1%. The low vaccination rate experienced in these nations is directly attributed to strict pharmaceutical patents in the United States and other western nations that are preventing these nations from producing cheaper alternatives. The UN Development Programme projects that low SES nations are expected to lose over $220 billion as a direct result of the COVID-19 pandemic. This immense economic loss will cause deep social impacts to these nations, likely impacting human rights, education, and food security. 

The people of U.S. do not experience the access-related issue that low SES nations face, on the contrary there is an overabundance of the vaccine, allowing immunocompromised people to receive third doses. The main driving force behind the low vaccination rate in the U.S. is the bombardment of misinformation, which has its biggest impact on marginalized and working-class communities. Much of this misinformation targets the mistrust these marginalized groups already have in public health intervention, especially relating to abuses like the Tuskegee Study and the early stages of HIV/ AIDS outreach. When it comes to working-class communities, finding time to get the vaccine can be hard due to potentially missing work or lack of adequate transportation.  For many working class people, these factors in conjunction with misinformation, causes many workers to view missing work to receive the vaccine doses as too risky. 

In September of 2021, the Biden administration announced that it will compel OSHA to mandate vaccinations for all companies with more than one hundred workers. The Administration projects that this mandate will push “80 million American workers” to vaccinate. While this will be great at incentivizing more workers to receive the vaccination, it will significantly burden marginalized and working-class individuals if these mandates aren’t coupled with protections and benefits. These could include providing subsidies for the transportation cost and missed work, as well as protections from employer retaliation. Further, the Administration can compel other agencies to promulgate rules that expand the mandate even more. For example, the Administration can compel the Department of Transportation to mandate proof of vaccination for all interstate public transportation. With these modified actions, the Biden Administration can help to significantly increase the United States’ vaccination rate.

As employees start to head back to the office there is one question on their mind – do I have to get vaccinated to go back to the office?  While many employees voluntarily chose to get the Covid-19 vaccine, others are concerned about losing their job if they choose not to get vaccinated.

Whether an employer can require an employee to get vaccinated depends on state law.  With the ever evolving circumstances surrounding the COVID-19 pandemic, states are still in the process of passing legislation surrounding employer’s requirement or discrimination based on receiving the Covid-19 vaccine.  Several states have pending legislation that would not allow employers to require employees to receive the Covid-19 vaccine as part of their employment.  Other states have pending legislation to protect employers who require employees to be vaccinated.

Federal law may still offer some protections to employees who choose not to get vaccinated.  Employees may be exempt for religious beliefs or medical issues.  Employees that are covered by the Title VII of the Civil Rights Act of 1964 who have made employers aware of their religious beliefs may have the foundation to receive a religious exemption.  Additionally, the Americans with Disabilities Act may protect individuals that have a protected disability that would be medically averse to receiving a vaccination.  Employers will need to make appropriate accommodations for employees with disabilities.

For employers that do require employees to be vaccinated, there are limitations on what they can ask employees.  Employees who receive their vaccination aside from employer sponsored vaccination, are not required to show medical proof of vaccination.  Employers may ask employees whether they are vaccinated against COVID, but that is the extent of proof employers can require from employees.  As the world enters a new phase, many questions are still left unanswered surrounding the COVID-19 vaccine. Alternatively, will employers be held liable if they do not require vaccinations?  Some legal professionals would be surprised if employers were but it is not outside the realm of possibility.  

Requiring vaccinations may largely depend on the employer’s industry.  For example, hospitals and other medical entities may require employees to be vaccinated.  Employers in the medical industry already require employees to receive other routine vaccinations and tests as part of their continued employment.  There are, however, employees who work from home or have limited contact with the public. In these instances, an employer may decide not to require employees to get vaccinated since they do not regularly enter the workplace.

The U.S. Center for Disease Control regularly encourages everyone to receive a COVID-19 vaccine in the interest of public health. Nonetheless, whether employees are vaccinated or not, employers are still encouraged to maintain safety protocols to protect their employees and the public from being exposed to the COVID-19 virus.